The safe choice

Obama aims for a minimum of trouble

May 10, 2010

In choosing Elena Kagan for the Supreme Court, President Barack Obama went for safety, quality and potential longevity. Kagan was vetted without much controversy when the president named her to the job of solicitor general, she has been a professor at the University of Chicago and dean of Harvard Law School and she's just 50 years old, meaning she could serve on the court for three or four decades.

What he didn't go for was a candidate with a sharp-edged ideological identity and a thick stack of controversial articles and judicial opinions. Not since the free-for-all that followed President Ronald Reagan's ultimately rejected nomination of conservative Robert Bork in 1987 has a president been willing to choose a justice who presented a large target. The Obama administration's obvious hope is to get its nominee approved with a minimum of trouble.

Kagan has much to recommend her. She is a first-rate legal mind, a respected scholar and accomplished administrator. Though she clearly falls at least slightly left of center in her political outlook, and perhaps more than slightly, she has managed to win sterling accolades from some conservatives. Jack Goldsmith, a Justice Department official during George W. Bush's administration, has said she "combines principle, pragmatism and good judgment better than anyone I have ever met."

Republicans in the Senate, which seems likely to confirm her, have every right to prefer someone more conservative. But given who won the 2008 election, Kagan is probably about as palatable as anyone they are likely to get.

She will have a few hard questions to answer, particularly about her handling of military recruiters at Harvard. In 2003, after a federal appeals court said law schools had the right to refuse recruiting help to employers that discriminate on the basis of sexual orientation — which disqualified the U.S. military — Kagan restored a ban that had been adopted and dropped before her arrival.

But Kagan did allow access to military recruiters through the Harvard Law School Veterans Association, and veterans who attended the law school during her time there have extolled her support for them. Nor does her support for gay rights make her "anti-military."

Still, Kagan has her work cut out in explaining her legal reasoning when she signed briefs arguing that law schools had the right to deny help to the military — an argument the Supreme Court then rejected without a dissenting vote.

Another of the few interesting exchanges we can expect will be about a law review article from 1995 in which Kagan said it is "an embarrassment" that "senators today do not insist that any nominee reveal what kind of justice she would make, by disclosing her views on important legal issues." No doubt she will dutifully eat those words.

Senators may also have some qualms about her narrow professional path, which has been limited to academia and government service. True, the court could benefit from having justices with more diverse career backgrounds. A senator or governor, for example, might remind the other justices that the judiciary is not the only important branch.

Nothing has emerged to suggest that Kagan would not be a good justice. It's just a shame that the selection and confirmation process won't tell the public more about what kind of justice she would be.